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Race To Property: Racial Distortions Of Property Law, 1634 To Today, Bethany Berger
Race To Property: Racial Distortions Of Property Law, 1634 To Today, Bethany Berger
Faculty Articles and Papers
Race shaped property law for everyone in the United States, and we are all the poorer for it. This transformation began in the colonial era, when demands for Indian land annexation and a slave-based economy created new legal innovations in recording, foreclosure, and commodification of property. It continued in the antebellum era, when these same processes elevated nationalized property transactions over other rights; and gained new tactics after the end of slavery through the early twentieth century, when the pursuit of racial hierarchy expanded private owners' rights to exclude and tied occupation of physical space to status. The influence of …
Eliding Original Understanding In Cedar Point Nursery V. Hassid, Bethany Berger
Eliding Original Understanding In Cedar Point Nursery V. Hassid, Bethany Berger
Faculty Articles and Papers
Cedar Point Nursey v. Hassid is a triumph of the conservative majority of the Supreme Court. In holding that temporary entries to land are takings without regard to duration, impact, or the public interest, the Court fulfilled the decades-long ambitions of anti-regulatory advocates of private property. Progressive and conservative scholars agree that the decision runs roughshod over precedent. This essay focuses on a less obvious aspect of Cedar Point: its flagrant departure from original understanding. American law at the time of the founding recognized a robust right to enter private property. Trespass law did not even reach entries unless they …